At least for the moment, the answer is Yes. Last week, the General Counsel National Labor Relations Board (NLRB)’s issued a Memo saying that football players at private colleges must be treated as employees, so they may seek protection against unfair labor practices. Richard Griffin, the general counsel for the NLRB, wrote that “scholarship football players in Division I Football Bowl Subdivision private-sector colleges and universities are employees” under the National labor Relations Act.

What was the Reasoning Behind this Decision?

The General Counsel felt that the athletes, like employees, work full-time hours during the regular season, receive “significant compensation” in exchange for their work, and can be “fired” from the team for poor performance or other factors. The Memo says that it doesn’t resolve questions about whether football players should be treated differently than athletes in non-revenue sports.

Does this Mean that the Players can Take the Universities to Court?

Despite the NLRB guidance, Federal courts are not anxious to say that student athletes are employees. In December 2016, the federal appeals court in Chicago dismissed a minimum wage claim against the NCAA and Division I Universities and Colleges, but just a few days later, a federal District Court in California refused to dismiss a case like this against the NCAA, and it’s too early for that decision to be appealed, so we can’t be sure yet.

What Can the Players Actually Do to Improve Their Situation?

For now, this means any interested party could file an unfair labor practice charge with the NLRB about private football players. A union or interested group can file charges with evidence, and it doesn’t necessarily have to be a specific player.

Is this Trend Likely to Continue?

No. The term of the General Counsel who issued this opinion will expire on November 3, 2017, when President Trump will replace him with a Republican who will, in all probability, be opposed to any expansion of the right to unionize.

Over the last six years, Mr. Cafaro has applied his litigation skills toward representing employees aggressively in overtime and discrimination cases. He has represented hundreds of workers successfully in individual wage and hour cases, including class and collective actions. He also litigates discrimination cases in both the federal and state courts.

Fluency in Spanish helps Mr. Cafaro to communicate with clients in their native language.

The new law covers individuals who provide services, and is only available in the City of New York:

New York City | Queens | Brooklyn | The Bronx

What Does This New Law Mean for Me, as a Freelancer?

It basically gives you the same state law labor rights as employees have. This is HUGE. It gives you the right to double damages - $2,000.00 for every $1,000.00 of the agreed price of the work.

If you win, the company will have to pay you a 100% penalty, plus your attorneys’ fees and your court costs.

Why will it be different now?

Now you will be able to get a lawyer to sue without paying out of pocket. This is called: “Contingency Fee” You Don’t Pay any Legal Fee , Unless You Win

Then the attorney gets a percentage of the fee. You have nothing to lose!

The people that hired you will have to take your lawsuit more seriously now, because they will have to pay double damages.

They will have to pay your attorney’s fees if they lose, which could be more than the amount that you were supposed to be paid in the first place.

In practical terms, this also means that your case will be easier to settle, and will resolve in less time.

What if the company never gave me anything in writing saying how much I’d be paid?

A written contract is now required.

If you asked for a written contract and none is given to you, that’s a violation that you can now sue for, in and of itself.

In employment law cases, if the employer doesn’t keep any records, your word is presumed to be right, as long as what you’re claiming is reasonable. This is another issue that will have to develop in the courts when the law goes into effect.

What Practical Difference Will this new “ Freelance Isn’t Free” law mean to me?

Now, a lot of companies just aren’t paying you because you have so few legal rights, and they’re just not worried about you suing them. Until this law was passed, most lawyers were not willing to do these cases for a percentage of what they got for you at the end (this is called a “contingency fee”, explained above); they wanted you to pay their legal bills by the hour up front, which you couldn’t afford to do. THIS CHANGES ALL THAT.

If I was hired to do the job by a single individual, as opposed to a company, will this law apply?

Yes, it will.

I consider myself a Freelancer, but how do I know if I can use this new law?

It only applies to “organizations of no more than one person”, but if you have a corporation or a d/b/a name, that’s OK.

If you have salaried employees on a regular basis, this law may not apply to you.

If you use independent contractors or people to help you on an “as needed” basis, you probably will be able to use this law, but:

These issues, and others, will be fought between “us” and “them” when it goes into effect. It will only apply to jobs for $800 or more.

When is this law going into effect?

On May 16, 2017. It will only apply to contracts entered into on or after the effective date

Yes, you can say anything you want under the First Amendment, but your boss is allowed to fire you or take action against you at work for it – Private Employees have no First Amendment protection against being fired or demoted under Federal Law.

Do I have Any Legal Protection at Work at All?

Yes, there is a New York State law that gives you some protection, Labor Law § 201-d. It says that no employer can discriminate in hiring, firing or conditions of employment against anyone for political activity.

What Political Activity is Protected?

running for public office,

campaigning for a candidate for public office, or

participating in fund-raising activities for a candidate, political party or political advocacy group.

Example:A records clerk for the Nassau County legislature was fired from his job less than four months after an election in which Republicans took control of the Legislature, and claimed that he had gone door to door for Democratic candidates, volunteered at phone banks, and distributing campaign literature. The Legislature argued that it had let him go due to budget cuts, the fired clerk argued that the need for budget cuts arose only because the Legislature had hired three new employees—all Republican. His claim was validFishman v. County of Nassau, 2013 U.S. Dist. LEXIS 47071, 2013 WL 1339466 (E.D.N.Y. Apr. 1, 2013),

Absolutely not. Remember also that there will be generally little or no protection for any political activities conducted during work hours, on the employer’s premises, or using the employer’s equipment or materials; It gives you protection for what you doon your own time. Whether a simple one time statement of political affiliation at work is protected is not really clear from the law, and can probably be argued either way, but the more extensive the speech isat work, the better chance the boss will win. If the employee is wearing a campaign button for a particular candidate and the employer says to take it off, they should do it and put it back on when they leave work.

Remember – The General Rule is That There is No Free Speech Right When You Work for a Private (non-government) Employer on His Time. The law we’re talking about here provides some protection, but that protection is limited; it is by no means absolute.

Are Government Employees (Federal, State, City, County, etc.) Political Speech Rights Protected?

Yes – They have much stronger federal law protection under the First Amendment. The First Amendment generally prohibits government officials from dismissing or disciplining an employee because of the employee’s engagement in political activity. One recent Supreme Court case, Heffernan v. City of Paterson, 136 S. Ct. 1412 (U.S. 2016) protected a police officer who took a campaign sign for someone challenging the mayor to his disabled mother on his own time. The police chief, who had been appointed by the current mayor, demoted him. Even though he wasn’t campaigning himself and had no interest in the election, he was just doing a favor for his mother, he was protected, because to hold otherwise would frighten the other employees from exercising their political speech rights – what courts call a “chilling effect.”

But here are a few things to keep in mind:

The speech always has to be about a matter of public concern, and if it is, the employee’s right, as a citizen, to engage in the speech has to be weighed by the Court against the interests of the State, as an employer, in promoting the efficiency of the public services it performs,Pickering v. Bd. of Educ.,391 U.S. 563 (U.S. 1968).

This can also cover rights of political association; and

In order to be protected, it must generally be on the employee’s own time, without using the employer’s premises or materials; and

Anything a public employee says in the course of his/her employmentwill notbe protected.Example:If an employee of the Mayor’s Office makes any statement on the news in his/her official capacity, the Mayor can fire or discipline them for anything they say or don’t say, whether it’s true or not. Remember also that policy making and confidential employees probably can be dismissed just based on their political affiliation where the employer can show that party affiliation is an appropriate requirement for the effective performance of the public office involved, Vezzetti v. Pellegrini,22 F.3d 483, 1994 (2d Cir. N.Y. 1994).

If you have strong political views which are very different from those of your employer, you should probably avoid any confrontation and get legal advice first as to how to best protect yourself. Call the Law Offices of William Cafaro at212-583-7400before you take any action like this.

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I work way more than 40 hours a week for the same weekly salary. My boss says that he doesn’t have to pay me anything for my overtime hours. Is this true?

It depends. Under the old rule, Anyone who earned a weekly salary of at least $455 per week and was considered Executive or Administrative was exempt from the overtime laws, and did not have to be paid for their overtime hours at all. In order to be exempt, the employee has to have what’s called “substantial discretion”, which means that they have to be able to make some pretty important decisions on their own on a regular basis. Various other conditions have to be met as well. This usually includes supervisors, managers, and certain office people who make important decisions. Many times when the boss says that you are not entitled to overtime, you might very well be, and you won’t know without asking an Employment Lawyer.

How is the New Rule Different?

The biggest change in the rule is a big increase in the minimum weekly salary.

How Much Did it Go Up?

In New York City, the minimum salary is now either $825 a week if the business has 11 or more employees. It is $787.50 per week if the business has 10 employees or less. Outside the City, these limits are a little lower.

What’s the Practical Effect of This Rule for Me?

Your boss now has to do one of two things if you are salaried and considered executive or administrative: 1) Increase your salary to the $787.50 - $825 per week level or 2) Start paying you time and a half when you work more than 40 hours.

When Does the New Rule Go Into Effect?

This rule goes into effect on December 31, 2016.

What’s so great about this?

These exemptions were originally meant for highly-paid employees who had better benefits, job security and opportunities for advancement, but because the minimum salary cutoff is hasn’t changed for such a long time and was far too low, many middle class workers, managers, and people with executive duties had no right to overtime protection. Their employers forced them to work ridiculous hours at no additional labor cost, any they legally couldn’t do anything about it.

This will change all that, and require employers to either i) raise their salaries; or ii) pay them time and a half for their overtime; iii) give them more time off; or iv) some combination of those things. This is a win/win for all the workers covered by it. The employer will now have to be conscious of how long he is making his employees stay, or start paying them more money.

By order of President Obama, the U.S. Dept. of Labor enacted a new federal rule that would have raised the minimum weekly salary to $913 per week, but a judge has already stopped it from going into effect. The new Secretary of Labor appointed by President Trump, Andrew Puzder, (who became very wealthy in the fast food industry) is strongly opposed to any increases in the minimum wage, so the new federal rule will not go into effect. So much for President Trump helping the working man.

When you are involved in a legal dispute, whether you're experiencing unfair treatment at work, or you've been hurt because of someone else's carelessness, you want to be represented by attorneys who understand the law and the process, and who have proven their ability to get results for their clients. That's exactly what you'll get when you hire the Law Offices of William Cafaro. We've obtained several multi-million dollar settlements and verdicts for our clients, and always use our considerable experience, knowledge, skill and resources to pursue maximum compensation for our clients.

In this blog, we'll offer insights into legal issues, so that you can be a more effective participant in your legal issue. We'll address a wide range of topics, including:

Employment Law

How to know if you have an overtime, discrimination, harassment, wrongful discharge or other work-related claim

The best ways to protect your rights when you are being treated unfairly at work

What you can expect in terms of damages or other legal redress when you have a problem at work

What to expect from your employer during a work-related dispute

Any relevant changes in employment law

Personal Injury

Construction site accidents, from falls and falling objects to dangerous and defective equipment or machinery, construction site motor vehicle accidents and negligence in hiring, monitoring or training

Our attorneys and staff take a comprehensive approach to employment and personal injury actions, combining thorough preparation with extensive courtroom skills. We understand the stress and anxiety that accompany a personal injury, and place a premium on being available and accessible when you need answers to your questions.